Stanley v. Belcher et al
MEMORANDUM AND ORDER ENTERED: Defendants' motion 16 to dismiss is granted. Plaintiff's motions 15 & 19 for order are denied. Signed by Senior District Judge Sam A. Crow on 03/11/14. (Mailed to pro se party Aaron R. Stanley by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AARON R. STANLEY,
CASE NO. 12-3089-SAC
COL. ERIC R. BELCHER, et al.,
MEMORANDUM AND ORDER
This matter is a Bivens-type1 civil rights action filed pro se
by a plaintiff alleging violations of his federal constitutional
rights during his incarceration at the United States Disciplinary
Barracks, Fort Leavenworth, Kansas (USDB).
Defendants have filed a motion to dismiss (Doc. 16). For the
reasons stated herein, the court grants the motion.
This matter arises from an incident at the USDB in August 2010
that began with plaintiff’s attack on a correctional specialist.
Plaintiff took the officer’s keys, and, aided by other inmates,
released ten more maximum security inmates. The specialist was locked
in a shower stall.
Other staff members soon ordered the inmates to release the
specialist and return to their cells. The inmates refused to follow
that order and instead, attempted to disable the video security
system, broke furniture and other items to use as weapons, and flooded
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
the housing unit. Two of the inmates removed the specialist from the
shower stall and attacked him before locking him in again.
Apparently expecting the arrival of a response team, plaintiff
and other inmates covered their faces with clothing, barricaded the
doors to the unit, and obscured views into the area and the shower
stall where the specialist was held.
The facility assembled a response team to force an entry into
the housing area. Before deploying that team, defendant Belcher
ordered the inmates to return to their cells and offered to meet with
them individually in their cells. They refused to comply. Defendant
Belcher repeated the order, and after the inmates again refused to
comply, he ordered the response team to execute the response plan,
which began with the use of pepper spray. The barricades erected by
the inmates rendered this effort unsuccessful, and the team then
elevated its response to the use of non-lethal rubber pellets. After
five team members fired the pellets through openings near the main
access door, the remaining team member breached the door, pressed
through the barricades, and continued firing upon non-compliant
plaintiff, refused to retreat and continued to resist the team
members. As a result, the team fired a second volley of pellets and
eventually subdued all of the resisting inmates.
The team placed the inmates in flexible restraints, removed the
specialist from the shower and escorted him to a medical station, and
placed the inmates in a triage area for examination of their status.
There is no information that identifies any physical injury to the
Following the incident, plaintiff immediately was placed on
“intractable” status. He remained in that status for three days, when
investigation. He was convicted by a court-martial in November 2011,
and also was subjected to an administrative Discipline and Adjustment
(D&A) Board for his involvement in the incident. He was housed at the
USDB as a maximum security inmate until September 2012, when he was
elevated to medium security. He was discharged from the U.S. Army on
March 22, 2013, and in May 2013, he was transferred to the custody
of the federal Bureau of Prisons.
The motion to dismiss
Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b)(1),
which allows a court to dismiss a complaint for “lack of subject matter
Such a dismissal is not an adjudication on the merits
of the action, but rather a determination that the court has no
authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576,
1580 (10th Cir. 1994)(the federal courts are courts of limited
jurisdiction and may only exercise jurisdiction where they are
authorized to do so). A Rule 12(b)(1) motion is “determined from the
allegations of fact in the complaint, without regard to mere
[conclusory] allegations of jurisdiction.” Groundhog v. Keeler, 442
F.2d 674, 677 (10th Cir. 1971). Plaintiff has the burden of establishing
the court’s subject matter jurisdiction. Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir. 1974).
Defendants assert several grounds for the dismissal of this
action. First, they contend that plaintiff’s claims are barred by the
In Feres v. United States, 340 U.S. 135 (1950), the United States
Supreme Court determined that the Federal Tort Claims Act did not
operate as a waiver of sovereign immunity for an action brought by
active duty military personnel, holding that the federal government
is not “liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course of
activity incident to service.” Feres, 340 U.S. at 146.
Following Feres, the federal courts have extended its “incident
to service” test to bar other damages actions against military
officials. In Chappell v. Wallace, 462 U.S. 296 (1983), the Court
applied the Feres doctrine to bar constitutional claims brought
pursuant to Bivens, holding “that enlisted military personnel may not
maintain a suit to recover damages from a superior officer for alleged
constitutional violations.” Chappell, 462 U.S. at 305. Thereafter,
the Court reiterated its holding that the Feres doctrine bars a Bivens
action in United States v. Stanley, 483 U.S. 669, 681 (1987)(“Today,
no more than when we wrote Chappell, do we see any reason why our
judgment in the Bivens context should be any less protective of
military concerns than it has been with respect to FTCA suits, where
we adopted an ‘incident to service’ rule.”)
Plaintiff’s status as a military prisoner dictates that his
claims arose incident to military service. See Ricks v. Nickels, 295
F.3d 1124 (10th Cir. 2002)(rejecting military prisoner’s Bivens claim
under Feres doctrine; although military prisoner had received a
punitive discharge prior to his injuries, he remained subject to the
Uniform Code of Military Justice). Here, plaintiff was incarcerated
in military custody and had not been formally discharged at the time
of the incident. It is plain that the Feres doctrine bars his damages
Plaintiff also seeks declaratory and injunctive relief. However,
plaintiff’s transfer from military custody to the Bureau of Prisons
renders these claims moot. “A case becomes moot when factual
developments render a claim no longer live and ongoing, such that a
decision on the merits will not affect the behavior of the defendant
toward the plaintiff.” Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir.
2012). See also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir.
declaratory and injunctive relief) and Nasious v. Colorado, 495
Fed.Appx. 899, *3 (10th Cir. 2012)(citing “well settled” principle that
transfer from a prison moots request for declaratory or injunctive
For the reasons set forth, the court grants defendants’ motion
to dismiss. Plaintiff’s motions for order, which concern evidence
submitted on a DVD, are denied as moot because this matter has been
determined on jurisdictional grounds.
IT IS, THEREFORE, BY THE COURT ORDERED defendants’ motion to
dismiss (Doc. 16) is granted.
IT IS FURTHER ORDERED plaintiff’s motions for order (Docs. 15
and 19) are denied.
Copies of this Memorandum and Order shall be transmitted to the
IT IS SO ORDERED.
This 11th day of March, 2014, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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